Allowed

Ankush Kumar v. Shikha Choudhary

Himachal Pradesh HC3 Dec 2024FAO(FC)/30/2024

Case brief

AI extract

What is this about?

The High Court allowed the appeal, holding that pendente lite maintenance should have been awarded from the date of filing the divorce petition until its dismissal. It modified the Family Court order to grant monthly maintenance for the pending period, adjusted amounts between the Hindu Marriage Act and Domestic Violence Act orders, and directed salary deduction of future arrears.

What did the court decide?

Impugned order modified to award pendente lite maintenance of ₹20,000 per month from 23.08.2022 to 05.01.2024; subsequent maintenance of ₹8,000 per month under D.V. Act to be adjusted against future H

Ankush Kumar Vs Shikha Choudhary — Maintenance and Alimony | Himachal Pradesh HC (2024)

¶1

( 2024:HHC:14448 )

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

¶3

FAO(FC) No.30 of 2024 Decided on : December 3, 2024

Ankush Kumar

…..Appellant

Versus

Shikha Choudhary ….Respondent

¶8

Coram:

¶9

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The Hon’ble Mr. Justice Rakesh Kainthla, Judge Whether approved for reporting? For the Appellant : Mr.Dheeraj K. Verma, Advocate. For the respondent : Mr.Naveen K. Bhardwaj, Advocate.

¶10

Vivek Singh Thakur, Judge (Oral)

¶11

Present appeal has been preferred by husbandAnkush Kumar against his wife-Shikha Choudhary, assailing order dated 05.01.2024 passed by Principal Judge (Family Court), Kangra at Dharamshala, in application CMA No.1233 of 2022, titled as Shikha vs. Ankush Kumar, preferred by wife under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘H.M. Act’), for grant of pendente lite maintenance during pendency of the main petition preferred by husband-Ankush Kumar for dissolution of marriage bearing HMA No.946 of 2022, filing No.HMA No.2430 of 2022, titled as Ankush Kumar vs. Shikha Choudhary, under Section 13 1(ia), (ib) of the H.M. Act.

¶12

Admittedly, main petition preferred by Ankush Kumar was dismissed for non-prosecution on 05.01.2024 when

¶13

…2… ( 2024:HHC:14448 )

¶14

neither the petitioner (Ankush Kumar) nor his counsel turned up to pursue the petition filed by the husband.

¶15

Application for pendente lite maintenance was also decided on the same day by the Principal Judge (Family Court) by directing the husband to pay `20,000/- per month to Shikha Choudhary, but from the day of passing of the order with direction to deduct the same from the salary of Ankush Kumar. 4. It has been submitted on behalf of the appellant that application filed by the respondent for grant of pendente lite maintenance under H.M. Act, which was permissible during pendency of the main petition, i.e. HMA No.946 of 2022 and after dismissal of the main petition, respondent was not entitled for any maintenance in an application preferred by her for grant of pendente lite maintenance under Section 24 of H.M. Act.

¶16

Learned counsel for the respondent submits that respondent had filed an application for grant of pendente lite maintenance during pendency of the petition and, therefore, respondent is entitled for maintenance for the period during which petition preferred by appellant-Ankush Kumar remained pending which has now been dismissed for non-prosecution on behalf of Ankush Kumar and, therefore, it has been submitted that order passed by the Principal Judge (Family Court) should be construed and is to be modified to the extent that respondent-Shikha Choudhary is entitled for pendente lite

¶17

…3… ( 2024:HHC:14448 )

¶18

maintenance for the period for which petition preferred by Ankush Kumar remained pending in the Family Court.

¶19

After going going through the record and considering the submissions made by learned counsel for the parties, we are of the considered opinion that once main petition was dismissed for non-prosecution, there was no occasion or reason for the Principal Judge (Family Court) to award maintenance @ `20,000/- from the date of order.

¶20

In fact, pendente lite maintenance had to be directed to be paid to Shikha Choudhary from the date of filing of the petition till the date of its disposal, but Principal Judge (Family Court) has committed a mistake by passing the order awarding maintenance allowance from the date of order with direction to the concerned DDO Commandant to deduct the same from the account of Ankush Kumar.

¶21

On perusal of record of the Family Court, we find that respondent-Shikha Choudhary had filed an affidavit of assets and liabilities with details of source of earning by her as well as Ankush Kumar, wherein she had claimed that Ankush Kumar is serving in Indian Army and earning handsome salary of `70,000/- per month. The said affidavit, despite granting and availing opportunities, was not disputed by Ankush Kumar nor any affidavit of assets and liabilities was filed by him.

¶22

In the aforesaid facts and circumstances, and material available on record, we are of the opinion that

¶23

…4… ( 2024:HHC:14448 )

¶24

awarding 20,000/- per month as pendente lite maintenance during pendency of the petition preferred by Ankush Kumar, i.e. from 23.08.2022 till disposal thereof, i.e. 05.01.2024, is reasonable and, accordingly, impugned order dated 05.01.2024 is modified to the extent that appellant-Ankush Kumar shall be liable to pay 20,000/- per month as pendente lite maintenance to Shikha Choudhary from 23.08.2022 till 05.01.2024, arrears whereof shall be recovered from the salary of appellant-Ankush Kumar @ 20,000/- per month till realization of the entire maintenance.

¶25

At this stage, learned counsel for the appellant has submitted that vide order dated 21.07.2023 passed by Chief Judicial Magistrate, Kangra at Dharamshala, passed in Cr.M.A. No.209-IV/2023, titled as Shikha vs. Ankush Kumar, under Section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘D.V. Act’), Chief Judicial Magistrate has awarded maintenance allowance @ `8000/- per month to petitioner-Shikha Choudhary from the date of filing of the main petition No.114-IV/2022.

¶26

The said fact is not disputed by learned counsel for the respondent.

¶27

In the interest of justice, as both orders are dealing with maintenance during pendency of litigation, we are of the opinion that 8000/- per month awarded under D.V. Act deserves to be adjusted against the amount of 20,000/-

¶28

…5…

¶29

( 2024:HHC:14448 )

¶30

awarded by the Family Court for the relevant period only. However, DDO shall deduct 20,000/- in future till realization of maintenance under H.M. Act, and in case 8000/- have already been paid by the appellant then, the said amount shall be adjusted against the future payment of maintenance under D.V. Act @ 8000/- per month. Meaning thereby that from 23.08.2022 till 05.01.2024, appellant shall be liable to pay 20,000/- per month pendente lite maintenance and after 05.01.2024 as he has to pay `8000/- as awarded in the proceedings under D.V. Act, subject to alteration or modification by the Competent Court till currency of the said order.

¶31

For settlement of accounts of arrears or payment made by the appellant, if any, parties shall be at liberty to produce relevant documents to establish and prove the same before relevant Courts below, i.e. Family Court/Magistrate’s Court under Section H.M Act/D.V. Act.

¶32

Appeal is disposed of in aforesaid terms, so also pending application(s), if any.

¶33

( Vivek Singh Thakur ) Judge.

¶34

(Rakesh Kainthla) Judge.

¶35

December 3, 2024 (Purohit)

Ankush Kumar v. Shikha Choudhary

Case brief

What is this about?

What did the court decide?

Ankush Kumar v. Shikha Choudhary

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

State of Hp Vs Rupa Devi

State of Hp through Secretary (Hppwd) and Ors. Vs Ram Dhan and Anr.

State of Hp through Secretary (Hppwd) and Ors. Vs Ram Dhan and Anr.

Pooja Vs Kamaldeep

Lalit @ Shiv Nath Vs State of H.P.

Bhuvnesh Kumar Vs State of Hp